Professional Documents
Culture Documents
ESSAY
THE EFFECT OF MODERN PARTISANSHIP ON
LEGISLATIVE EFFECTIVENESS IN
THE 112TH CONGRESS
I. INTRODUCTION
Throughout our nation’s history, the United States Senate has largely
been revered as a place where the problems facing our nation are solved
after lengthy consideration and fervent debate. The United States Constitu-
tion provides the Senate with restrictions and responsibilities unique from
those of the House of Representatives, including, for instance, the require-
ment that Senators be at least thirty years old before serving and “the sole
Power to try all Impeachments.”1 In the Federalist papers, James Madison
made clear the difference between the two houses of the Legislative Branch
of American government: “The [H]ouse of Representatives will derive its
powers from the people of America . . . The Senate[,] on the other hand[,]
will derive its powers from the States, as political and co-equal societies; and
these will be represented on the principle of equality in the Senate.”2
In a famous anecdote, George Washington and Thomas Jefferson were
discussing the need for a Senate. Washington, a proponent for the establish-
ment of a Senate, asked Jefferson why he poured his coffee into a saucer.
“To cool it,” said Jefferson, to which Washington responded, “Even so, we
* Former Member, United States Senate (R-Me.). Senator Snowe served three terms repre-
senting the people of Maine in the United States Senate, following 16 years of service as U.S.
Representative from Maine’s 2nd Congressional District from 1979 until 1995. During her
time in Congress, she co-chaired the Congressional Caucus on Women’s Issues for 10 years
with Representative Pat Schroeder (D-Colo.), as well as the Senate Centrist Coalition with
Senators Jon Breaux (D-La.) and Joseph Lieberman (D-Conn.). The author especially wishes to
acknowledge the valuable contribution of her Communications Director, Chris Averill, con-
cerning the drafting, editing, and completion of this article.
1
U.S. CONST. art. I, § 3.
2
THE FEDERALIST NO. 39, at 193 (James Madison) (Clinton Rossiter ed., 1992).
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pour legislation into the senatorial saucer to cool it.”3 Whether or not the
story is true, it is a fitting analogy for the unique and lofty purpose of the
United States Senate.
In 1835, Alexis de Tocqueville visited the Senate, and wrote of it in
absolutely gushing terms.4 “[T]he Senate,” he said, “is composed of elo-
quent advocates, distinguished generals, wise magistrates, and statesmen of
note, whose arguments would do honor to the most remarkable parliamen-
tary debates of Europe.”5 He added that Senators “represent only the ele-
vated thoughts which are current in the community, and the generous
propensities which prompt its nobler actions, rather than the petty passions
which disturb, or the vices which disgrace it.”6 To de Tocqueville, the United
States Senate was a model of governance.
Fast forward to modern times, and the United States Senate is viewed in
a less sophisticated—and less praiseworthy—manner. An April 16, 2012
story in the Washington Examiner states that the United States Senate in
2011 was “the laziest in 20 years.”7 It’s part of the “worst Congress ever”
according to multiple observers, including the Washington Post’s Ezra Klein8
and Congressional scholar Norm Ornstein, who bemoans the “decline in in-
stitutional loyalty and other norms, the near disappearance of meaningful
debate and deliberation, and a sharp decline in the ‘regular order.’” 9
The Washington Times has determined that the Senate of 2011 ranks at
the very bottom of its Legislative Futility Index—a compilation of various
“yardsticks of activity such as time spent in session, number of pages com-
piled in the Congressional Record, [and] number of bills passed and votes
taken.”10 The second worst session of the Senate? The second session of the
112th Congress, or the Senate of 2012.11 Congressional scholar Sarah Binder
perhaps summed up the state of today’s Senate best and most succinctly:
“The Senate, besieged by its members’ and leaders’ partisanship, seems
barely up to the task of solving vexing national problems, let alone the easy
3
While this story has often been repeated, its veracity is very much in doubt. Nonetheless,
it serves as an adequate metaphor for the Senate as a place for consideration and reasoned
debate. The Thomas Jefferson Found., Inc., Senatorial Saucer, MONTICELLO.ORG, http://www.
monticello.org/site/research-and-collections/senatorial-saucer (last visited Oct. 8, 2012).
4
See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 259–60 (Henry Reeve trans.,
Sever & Francis 1863) (1835, 1840).
5
Id. at 259.
6
Id. at 260.
7
Paul Bedard, Report: Democrat-Controlled Senate Laziest in 20 Years, WASH. EXAM-
INER (Apr. 16, 2012), http://washingtonexaminer.com/report-democrat-controlled-senate-lazi-
est-in-20-years/article/493996#.UJRHOWB8uDB.
8
Ezra Klein, 14 Reasons Why This is the Worst Congress Ever, WASH. POST (July 13,
2012, 8:00 AM), http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/07/13/13-reasons-
why-this-is-the-worst-congress-ever.
9
Norman Ornstein, Worst. Congress. Ever., FOREIGN POLICY, July 19, 2011, http://www.
foreignpolicy.com/articles/2011/07/19/worst_congress_ever.
10
Stephen Dinan, Senate Succeeds at Something: Futility, WASH. TIMES, July 25, 2012, at
A1.
11
Id.
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12
Sarah Binder, Through the Looking Glass, Darkly: What has Become of the Senate?, 9
FORUM, no. 4, at art. 2, 13, available at http://www.brookings.edu/~/media/research/files/arti
cles/2011/12/senate-binder/12_senate_binder.pdf.
13
Mickey Edwards, The Dysfunctional Senate, ATLANTIC (Feb. 7, 2010, 3:49 PM), http://
www.theatlantic.com/politics/archive/2010/02/the-dysfunctional-senate/35503.
14
Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010,
Pub. L. No. 111-312, 124 Stat. 3296.
15
Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-
383, 124 Stat. 4137.
16
Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515.
17
Continuing Appropriations and Surface Transportation Extensions Act, Pub. L. No.
111-322, 124 Stat. 3518 (2010).
18
Treaty with Russia on Measures for Further Reduction & Limitation of Strategic Offen-
sive Arms, U.S.-Russ., Apr. 8, 2010, S. TREATY DOC. NO. 111-5 (2010). The Senate vote on
the New START Treaty occurred on December 22, 2010. S. TREATY DOC. NO. 111-5, Vote No.
298, Dec. 22, 2010 (Treaty Ratified 71-26).
19
Browse Public Laws: 111th Congress, LIBRARY OF CONG., http://thomas.loc.gov/home/
LegislativeData.php?&n=PublicLaws&c=111 (last visited Oct. 31, 2012) (laws passed by the
Congress in November and December 2010 are Pub. L. No. 111-285 through Pub. L. No. 111-
383).
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20
Labor Force Statistics from the Current Population Survey, BUREAU OF LABOR STATIS-
TICS, http://data.bls.gov/timeseries/LNS14000000 (last visited Nov. 2, 2012).
21
U.S. Dep’t of Commerce, National Income and Product Accounts Gross Domestic
Product, 3rd Quarter 2010, BUREAU OF ECON. ANALYSIS (Dec. 22, 2010), http://www.bea.
gov/newsreleases/national/gdp/2010/gdp3q10_3rd.htm.
22
11/29: Voters Want Compromise Across the Aisle But Doubt it Will Happen, MARIST
POLL (Nov. 29, 2011), http://maristpoll.marist.edu/1129-voters-want-compromise-across-the-
aisle-but-doubt-it-will-happen.
23
Marjorie Connelly & Bill Marsh, Rightward, March, N.Y. TIMES, Nov. 7, 2010, at
WK3.
24
Keith Poole & Howard Rosenthal, The Polarization of Congressional Parties,
VOTEVIEW (May 10, 2012), http://voteview.com/political_polarization.asp (emphasis omitted).
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25
Cf. John Aloysius Farrell, Divided We Stand, NAT’L J., Feb. 23, 2012, available at http://
www.nationaljournal.com/magazine/divided-we-stand-20120223.
26
Id.
27
Id.
28
Id.
29
Id.
30
Id.
31
See Election Results, MAINE.GOV, http://www.maine.gov/sos/cec/elec/prior1st.htm (last
visited Oct. 14, 2012).
32
See FED. ELECTION COMM’N, FEDERAL ELECTIONS 86 3–8 (1987); FED. ELECTION
COMM’N, FEDERAL ELECTIONS 84 3–23 (1985); FED. ELECTION COMM’N, FEDERAL ELECTIONS
82 1–7 (1982); CLERK OF THE HOUSE OF REPRESENTATIVES, STATISTICS OF THE PRESIDENTIAL
AND CONGRESSIONAL ELECTION OF NOVEMBER 4, 1980 1–70 (1981).
33
See FED. ELECTION COMM’N, FEDERAL ELECTIONS 2008 43–78 (2009); FED. ELECTION
COMM’N, FEDERAL ELECTIONS 2010 38 (2011); 2012 Presidential Election Results, WASH.
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incentive for members to work together, because the states themselves are
becoming more homogeneously conservative or liberal.
Without a doubt, polarization has taken root in both chambers of the
United States Congress for a variety of reasons. Consider, for instance, the
constant demands for content and ratings among the 24-hour news cycle,
which serves to accelerate the polarization of viewpoints and entrench
policymakers before thoughtful debate even has the opportunity to take hold.
Indeed, I often refer to this phenomenon as being defined through the prism
of either Fox News on the one hand, or MSNBC on the other.
Additionally, contemplate the role the explosion of so-called “third
party groups” has had in recent years. Funded by single-ideology advocates,
these groups spend 71 percent of their budgets funding campaign activities
to oppose, rather than support, candidates.34 And these groups have astound-
ing amounts of money. In 1990, just 23 years ago, total outside spending in
that election was just $7.2 million.35 Fast forward to 2010, and it was $295
million, a number that reflects the recent rise of so-called Super PACS.36 In
2012, the total exceeded $1 billion.37
The question is, what impact has the polarization borne from such fac-
tors had on the effectiveness of the two Congressional bodies to function as
problem-solving, legislative institutions? There are a number of timely and
illustrative examples of how the widespread polarization in Congress has
affected our ability to perform our jobs as legislators. Many of these concern
procedural norms within the Senate—such as the cloture rule, filibuster, and
right to unlimited debate. As Binder has noted, “Both parties expect that the
other party will fully exploit its procedural rights, leaving each side to take
increasingly aggressive steps that anticipate and attempt to undercut the
other party’s tactics.”38 We now have what amounts to a “parliamentary
arms race between the two political parties and their leaders,” she notes, and
what I call a perversion of the norms—distorting the traditions and rules of
the Senate to serve an individual party’s political goals.39 Let me begin by
examining some recent trends regarding Senate rules and procedures that
POST, http://www.washingtonpost.com/wp-srv/special/politics/election-map-2012/president
(last visited Nov. 10, 2012); 2012 U.S. Senate Election Results, WASH. POST, http://www.
washingtonpost.com/wp-srv/special/politics/election-map-2012/senate (last visited Nov. 10,
2012). This figure assumes that Senator-elect Angus King (I-Me.) will caucus with the Demo-
cratic party.
34
Becca Heller, A Half-Billion in Outside Influence: What Else Could the Money Buy?,
SUNLIGHT FOUND. REPORTING GRP. (Sept. 27, 2012), http://reporting.sunlightfoundation.com/
2012/what-could-we-buy-half-billion.
35
Ctr. for Responsive Politics, Total Outside Spending by Election Cycle, Excluding Party
Committees, OPENSECRETS.ORG, http://www.opensecrets.org/outsidespending/cycle_tots.php
(last visited Nov. 1, 2012).
36
Id.
37
Id.
38
Binder, supra note 12. R
39
Binder, supra note 12.
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A. Political Messaging
40
Meredith Shiner, In Senate, Democrats Try to Pad Resumes, ROLL CALL, Mar. 19, 2012,
at 1.
41
Editorial, The Bills to Nowhere, N.Y. TIMES, June 8, 2012, at A26.
42
Id.
43
Id.
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B. Filibuster
44
See Filibuster and Cloture, U.S. SENATE, http://www.senate.gov/artandhistory/history/
common/briefing/Filibuster_Cloture.htm (last visited Nov. 2, 2012).
45
See RICHARD S. BETH ET AL., CONG. RESEARCH SERV., RL30360, FILIBUSTER AND CLO-
TURE IN THE SENATE 1 (2011) (emphasis omitted).
46
See CHRISTOPHER M. DAVIS, CONG. RESEARCH SERV., 98-425, INVOKING CLOTURE IN
THE SENATE 1 (2011).
47
Manu Raju & Scott Wong, Filibuster Talks to Drive Senate Recess, POLITICO (Jan. 6,
2011), http://www.politico.com/news/stories/0111/47186.html.
48
See Ezra Klein, Is the Filibuster Unconstitutional?, WASH. POST., May 15, 2012, at A11
(citing Emmet J. Bondurant, The Senate Filibuster: The Politics of Obstruction, 48 HARV. J. ON
LEGIS. 467, 493–94 (2011)).
49
Id.
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the ongoing discussion on how to make the Senate more effective and less
deadlocked. But there are two other rules and procedures that have received
far less attention—but deserve a closer look—in explaining the modern
Senate.
In a 2010 piece for The New Yorker, author George Packer rightly
stated that “[m]any of the Senate’s antique rules and precedents have been
warped beyond recognition by the modern pressures of partisanship.”50 One
need look no further than the cloture rule for a fundamental example of the
truth of this statement.
The Senate instituted a cloture rule in 1917 in order to curtail the rou-
tine filibusters of the day.51 At the time it was established, the rule required a
two-thirds majority in order to end debate—a remarkably high bar.52 In
1975, the number of votes required for cloture was reduced to three-fifths, or
sixty votes.53 The presence of a cloture rule underscores the imperative of
working together in passing major legislation. Indeed, over the ninety-five
years since the cloture rule was instituted, the party in charge has had a
filibuster-proof supermajority for only fifteen of those years.54
In the years after the cloture rule was passed, it was scarcely utilized.55
It was not until the early 1970s that we witnessed a Congress with the in-
stances of cloture reaching double digits.56 In the last three Congresses, how-
ever, the Senate has reached triple digits in the number of cloture motions
filed—shattering the previous high of eighty-two motions in the 104th Con-
gress.57 Indeed, over the course of 2007 through the present, the 385 cloture
motions filed represent twenty-eight percent of all such motions since 1917;
50
George Packer, The Empty Chamber, NEW YORKER, Aug. 9, 2010, at 38, 45.
51
See Cloture Rule, U.S. SENATE, http://www.senate.gov/artandhistory/history/minute/
Cloture_Rule.htm (last visited Oct. 13, 2012).
52
See id.
53
See Filibuster and Cloture, U.S. SENATE, http://www.senate.gov/artandhistory/history/
common/briefing/Filibuster_Cloture.htm (last visited Oct. 13, 2012).
54
The instances in which one party held a supermajority, or filibuster-proof majority,
were the 74th, 75th, 76th, 77th, 89th, 94th, 95th, and first half of the 111th Congresses (in
some instances, Independents who caucused with the majority party were included as part of
the supermajority). See Party Division in the Senate, 1789–Present, U.S. SENATE, http://www.
senate.gov/pagelayout/history/one_item_and_teasers/partydiv.htm (last visited Nov. 1, 2012).
The Democrats lost the supermajority in early 2010 (halfway through the 111th Congress) with
the election of Senator Scott Brown (R-Mass.), who famously became the 41st Republican
Senator. Meredith Shiner, Scott Brown is Sworn in as 41st GOP Sen., POLITICO (Feb. 4, 2010),
http://www.politico.com/news/stories/0210/32552.html.
55
Senate Action on Cloture Motions, U.S. SENATE, http://www.senate.gov/pagelayout/ref-
erence/cloture_motions/clotureCounts.htm (last visited Nov. 2, 2012).
56
Id.
57
Id.
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the 271 cloture votes are twenty-seven percent of all cloture votes; and the
161 motions invoked add up to thirty-seven percent of the total.58
So why the dramatic increase in cloture in recent years? The majority in
the Senate would argue that its hands are tied because it believes the minor-
ity will filibuster each and every bill presented to the Senate. The minority
would argue that the majority has diminished the rights of its senators to
offer amendments to legislation (more in this trend in the next section) and
thoroughly and appropriately debate bills according to historical precedent.
Additionally, it is not the minority’s prerogative to file cloture motions—that
power rests with the Majority Leader—and so the rise in these instances is at
his discretion.59 He can file a cloture motion as soon as he brings legislation
to the floor, before any discussion occurs or any filibuster is clearly
delineated.60
It is also important to note that both the percentage of cloture petitions
that are vitiated—or withdrawn—as well as the percentage of cloture votes
passing is on the rise. In the 2000s, the percentage of cloture petitions with-
drawn averaged twenty-two percent.61 In the 112th Congress, the figure has
skyrocketed to thirty-nine percent.62 And the fifty-three percent success rate
for passing cloture votes in the 112th Congress represents the highest in the
last 40 years.63 Therefore, there is a careful distinction to be made in corre-
lating the filibuster with the cloture motion, as not every cloture motion is
filed in response to a filibuster.
The Senate Majority and Minority Leaders, Harry Reid and Mitch Mc-
Connell, reached a “gentleman’s agreement” at the outset of the 112th Con-
gress to avoid this scenario.64 Specifically, “McConnell . . . promised to
reduce the number of times the minority will block efforts to begin debate on
legislation. Reid, in exchange . . . pledged to limit the number of times he
will refuse Republicans opportunities to offer amendments.”65 Regrettably,
the agreement has not been maintained in large part due to the modern pres-
sures of partisanship within the Senate.66 Both members of the Senate and
outside analysts have questioned whether the breakdown in such an agree-
58
See id.
59
See generally Davis, supra note 46. R
60
See Davis, supra note 46, at 2. R
61
John Barrasso, Reid Doubles Down on Senate Dysfunction, SENATE REPUBLICAN POL’Y
COMM. (July 24, 2012), http://www.rpc.senate.gov/policy-papers/reid-doubles-down-on-sen
ate-dysfunction.
62
Id.
63
Id.
64
Manu Raju, Filibuster Reform Goes Bust, POLITICO (Jan. 28, 2011), http://www.politico.
com/news/stories/0111/48325.html.
65
Alexander Bolton, Reid, McConnell Reach Agreement on Speeding Pace of Senate Bus-
iness, THE HILL (Jan. 27, 2011), http://thehill.com/homenews/senate/140745-reid-mcconnell-
reach-agreement-on-speeding-senates-pace-of-business.
66
See Ezra Klein, There’s Too Much Trust in the Senate, WASH. POST (June 22, 2012,
10:48 AM), http://www.washingtonpost.com/blogs/ezra-klein/wp/2012/06/22/theres-too-
much-trust-in-the-senate.
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ment is cause for the Senate to reassess its rules.67 Regardless of one’s views,
it seems unlikely that the use of cloture will return to the exception, rather
than the rule, in coming years.
As has been noted, the United States Senate is unique among institu-
tions of government. One of its hallmarks is the protection the body gives to
the rights of the minority. While the House of Representatives, and many
parliamentary-style bodies, are premised on majority rule, the Senate pro-
vides unprecedented deference to the party out of power. The effect of this
has been debated over the centuries. Some believe that this only serves to
gum up the works, so to speak, frustrating the majority and allowing for
undue roadblocks to accomplish legislative goals. Others believe that such
focus on minority rights fits perfectly with the intent of the Senate to be “the
world’s greatest deliberative body,” as it slows things down (think of the
Washington-Jefferson saucer conversation) and allows for unfettered, thor-
ough, and in-depth consideration and debate of issues.
One of the Senate’s giants and foremost legislative historians, former
Senator Robert Byrd (D) of West Virginia—who served as both Majority
and Minority Leader during his fifty-one years in the Senate—was also one
of its strongest and most eloquent defenders of minority rights. He referred
to the institution as “the one place in the whole government where the mi-
nority is guaranteed a public airing of its views,”68 a place “for open and
free debate and for the protection of political minorities.”69 And he advised
that “as long as the Senate retains the power to amend and the power of
unlimited debate, the liberties of the people will remain secure.”70 It is es-
sential, then, that each Senate uphold and protect the rights of the minority.
It is also in the best interest of both parties, as they can fall in and out of the
majority at the discretion of the voters.
As such, a recent—and disturbing—trend related to the rights of the
minority is the increase of instances in which the Majority Leader has “filled
the amendment tree.”71 Because the Senate engages in full and open debate,
members are allowed to offer unlimited amendments to legislation that is
being considered on the Senate floor.72 Even if the amendment never re-
ceives a vote, it provides an opportunity for that Senator to highlight an issue
of concern to him or her, and offers a voice for his or her constituents. Of
67
See id.
68
143 CONG. REC. 22 (1997).
69
Id.
70
Id.
71
Cf. Mark Strand, Filling the Tree, CONG. INST. (June 12, 2008), http://conginst.org/2008/
06/12/filling-the-tree.
72
Senate Legislative Process, U.S. SENATE http://www.senate.gov/legislative/common/
briefing/Senate_legislative_process.htm#3 (last visited Nov. 3, 2012).
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73
In a traditional open amendment process, Senators can offer any amendment to an un-
derlying bill, regardless of whether or not it is germane to that legislation. At times, Senators
come to the floor to file several hundred amendments.
74
Barrasso, supra note 61. R
75
See Barrasso, supra note 61. R
76
Barrasso, supra note 61. R
77
S. 2237, 112th Cong. (2012).
78
See Bill Summary & Status 112th Congress (2011–2012) S.2237: All Congressional
Actions, LIBRARY OF CONG., http://thomas.loc.gov/cgi-bin/bdquery/D?d112:68:./temp/~bdz
VCd:@@@X (last visited Nov. 5, 2012).
79
S. 2237, Vote No. 174, July 10, 2012.
80
Daniel Strauss, Senate Stalls on Small-business Bill, Bush-Era Tax Rate Extension Pro-
posals, THE HILL (July 11, 2012), http://thehill.com/blogs/floor-action/senate/237449-senate-
fails-to-move-forward-on-small-business-bill-bush-era-tax-rate-proposals.
81
S. 2237, Vote No. 177, July 12, 2012.
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The danger inherent in this new trend is obvious. If not for the ability of
unlimited debate, the right to an open amendment process, and consideration
of minority rights, what differentiates the Senate from the House of
Representatives?
82
Jeffery Jones, Congress’ Approval Poised to Be Lowest in an Election Year, GALLUP
(Sept. 14, 2012), http://www.gallup.com/poll/157475/congress-approval-poised-lowest-elec
tion-year.aspx.
83
David McCullough, Address to Bipartisan Congressional Retreat (March 1997) (tran-
script available at http://capitolwords.org/date/1997/03/13/E460-2_bipartisan-congressional-
retreat).
84
Id.
85
Ron Wyden & Olympia Snowe, Power of Partnership, POLITICO (Nov. 2, 2011), http://
www.politico.com/news/stories/1111/67455.html.
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tax reform seemed so far-fetched when President Ronald Reagan first pro-
posed it in his 1984 State of the Union address, members in the chamber
laughed. Reagan, in his characteristic wit, asked: “I said something
funny?”86 But we set to work, and we discovered that working together,
Republicans and Democrats can lower rates for businesses and working fam-
ilies and make the Tax Code fairer by eliminating tax breaks. Working to-
gether, Democrats and Republicans can make tax compliance less of a
burden on U.S. taxpayers and a bipartisan effort can promote economic
growth and certainty by moving away from what has become common prac-
tice of temporary tax extensions. Indeed, the 1986 law helped spur a period
of economic confidence in which more than 6.3 million jobs were created in
the following two years.87
In 1995, the Senate began debating the welfare reform bill, and it was
believed by many to be an exercise in futility. But—in small groups—mem-
bers from both parties, sensing the exhaustion and despair of a welfare sys-
tem begun with the best of intentions, set aside their party labels and focused
on the first major overhaul since the Great Society. I and other moderate
Republicans worked with Senator Orrin Hatch (R-Utah) and Senator Chris
Dodd (D-Conn.)—a true “odd couple” when it comes to the Senate—and
with Majority Leader Bob Dole (R-Kan.) to reach agreement on child care,
triggering a compromise which allowed the Senate to pass welfare reform by
an astonishing 87–12 vote.88 Ultimately, this bill became the foundation for
the final reform package signed into law by President Clinton.89
These lessons are critical for members of both sides to recall. At pre-
sent, as many have noted, it seems that the Senate is incapable of handling
the smallest matters, let alone grand challenges like tax reform, job creation,
and economic growth. Indeed, the Senate has failed to pass a budget resolu-
tion—as mandated by the Constitution90 and in statute91—in over 1,250
days, or three-and-a-half years.92
As a March 2012 New York Times article titled The Formerly Routine is
Now Tendentious aptly describes:
Some things that Congress does are meant to be difficult: budgets,
tax law changes, the health care overhaul, the undoing of the
health care overhaul. But there are a host of things that used to be
86
1984 State of the Union Address, 20 WEEKLY COMP. PRES. DOCS. 87, 90 (Jan. 25,
1984).
87
Wyden & Snowe, supra note 85. R
88
H.R. 4, Vote No. 443, Sept. 19, 1995.
89
See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L.
No. 104-193, 110 Stat. 2105.
90
U.S. CONST. art. I, § 8.
91
Congressional Budget and Impoundment Control Act, 2 U.S.C. § 601 (2006).
92
Grim Milestone: Democrat-Led Senate Fails to Pass a Budget for Three and a Half
Years, SENATE REPUBLICAN CONFERENCE (Oct. 29, 2012), http://www.republican.senate.gov/
public/index.cfm/2012/10/grim-milestone-democrat-led-senate-fails-to-pass-a-budget-for-
three-and-a-half-years.
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almost routine that the 112th Congress has managed to make labo-
rious and at times downright tedious—a departure from the tradi-
tional desires of members to pass legislation during an election
year and claim accomplishments to trot out back home.93
Even in 2011—the year after an election year, when Congress tradition-
ally works in a more bipartisan manner to pass legislation that must be
passed but that members do not want to consider during the more politicized
election years—was highly unproductive.94 One example stands out more
than any other: the debt ceiling debacle.
93
Jennifer Steinhauer, The Formerly Routine is Now Tendentious, N.Y. TIMES, Mar. 24,
2012, at A12.
94
See, e.g., Ben Pershing, In 2011, Fewer Bills, Fewer Laws and Plenty of Blame, WASH.
POST (Dec. 5, 2011), http://www.washingtonpost.com/politics/in-2011-fewer-bills-fewer-laws-
and-plenty-of-blame/2011/12/05/gIQA566iXO_story.html.
95
Letter from Timothy Geithner, Sec’y, U.S. Dep’t of the Treasury, to Harry Reid, Major-
ity Leader, U.S. Senate (Jan. 6, 2011), available at http://www.treasury.gov/connect/blog/Doc-
uments/Letter.pdf.
96
Debt Limit, U.S. DEP’T OF THE TREASURY (July 20, 2012), http://www.treasury.gov/
initiatives/pages/debtlimit.aspx.
97
Id.
98
Letter from Timothy Geithner to Harry Reid, supra note 95. R
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99
Letter from Timothy Geithner to Harry Reid, supra note 95. R
100
Letter from Timothy Geithner, Sec’y, U.S. Dep’t of the Treasury, to Harry Reid, Major-
ity Leader, U.S. Senate (Apr. 4, 2011), available at http://www.treasury.gov/connect/blog/
Documents/FINAL%20Letter%2004-04-2011%20Reid%20Debt%20Limit.pdf.
101
Letter from Timothy Geithner, Sec’y, U.S. Dep’t of the Treasury, to Harry Reid, Major-
ity Leader, U.S. Senate (May 16, 2011), available at http://www.treasury.gov/connect/blog/
Documents/20110516Letter%20to%20Congress.pdf.
102
See NIKOLA SWANN, STANDARD & POOR’S, CREDIT FAQ: A CLOSER LOOK AT THE
REVISION OF THE OUTLOOK ON THE U.S. GOVERNMENT RATING 2 (2011).
103
Budget Control Act of 2011, Pub. L. No. 112-25, 125 Stat. 240.
104
NIKOLA SWANN, STANDARD & POOR’S, RESEARCH UPDATE: UNITED STATES OF
AMERICA LONG-TERM RATING LOWERED TO ‘AA+’ ON POLITICAL RISKS AND RISING DEBT
BURDEN; OUTLOOK NEGATIVE 3 (2011).
105
See Steven J. Davis, Scott R. Baker & Nicholas Bloom, Business Class: Policy Uncer-
tainty is Choking Recovery, AM. ENTER. INST. (Oct. 6, 2011), http://www.aei.org/article/busi
ness-class-policy-uncertainty-is-choking-recovery.
106
THOMAS E. MANN & NORMAN J. ORNSTEIN, IT’S EVEN WORSE THAN IT LOOKS: HOW
THE AMERICAN CONSTITUTIONAL SYSTEM COLLIDED WITH THE NEW POLITICS OF EXTREMISM
3–4 (2012).
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This should have been the example we used over the past year to
change our ways and work together to solve the immense problems facing
our country. This debacle should have been a rallying cry for us to shun the
partisanship in favor of bipartisanship. Yet, to this point, it is clear that has
not been the case. This legislative logjam does not have to be inevitable; yet,
what are the prospects for change in the future?
As of the time of writing this piece, the Congress must still tackle what
has been labeled the “fiscal cliff” by Chairman of the Federal Reserve Ben
Bernanke.107 As a result of political obfuscation over the past year, we will
have at most thirty-six business days in the lame duck session to confront
myriad challenges that require resolution by the end of the year. These in-
clude a potential $500 billion increase in taxes nationwide, including an esti-
mated average increase of $2,000 for middle class families;108 deep across-
the-board spending cuts as part of the sequestration; extension of unemploy-
ment insurance; fixing Medicare reimbursement for doctors; a potential in-
crease in the debt ceiling; and twelve individual appropriations bills that, as I
write, have yet to be considered in the Senate.
We can no longer delay and defer; we can no longer engage in partisan
battles and then fail to resolve the issues at hand. It is absolutely essential
that the Senate be the Senate again. I have called on the Senate leadership on
two occasions—in both April and July of 2012—to instruct the committees
of jurisdiction to begin their work on these formidable challenges.109 As I
wrote in my July letter:
What is required is the opportunity to thoughtfully scrutinize the
approaches—the pros and cons and benefits and drawbacks—so
that we can have a reasoned discussion during lame duck, rather
107
See Highlights: Bernanke’s Q&A Testimony to House Panel, REUTERS, Feb. 29, 2012,
http://www.reuters.com/article/2012/02/29/us-usa-fed-bernanke-idUSTRE81S1DO20120229;
see also Monetary Policy and the State of the Economy, U.S. HOUSE COMM. ON FIN. SERVS.
(Feb. 29, 2012), http://financialservices.house.gov/calendar/eventsingle.aspx?EventID=281
399.
108
ROBERTON WILLIAMS ET AL., URBAN INSTITUTE AND URBAN-BROOKINGS TAX POLICY
CENTER, TOPPLING OFF THE FISCAL CLIFF: WHOSE TAXES RISE AND HOW MUCH? 1 (2012).
109
Letter from Olympia Snowe, Republican Deputy Whip, U.S. Senate, to Harry Reid,
Majority Leader, U.S. Senate (Apr. 26, 2012), available at http://www.snowe.senate.gov/pub-
lic/index.cfm/pressreleases?ContentRecord_id=032653ba-a579-44f1-8e33-486c0eb840a2&
ContentType_id=ae7a6475-a01f-4da5-aa94-0a98973de620&Group_id=2643ccf9-0d03-4d09-
9082-3807031cb84a&MonthDisplay=4&YearDisplay=2012; Letter from Olympia Snowe,
Republican Deputy Whip, U.S. Senate, to Harry Reid, Majority Leader, U.S. Senate & Mitch
McConnell, Minority Leader, U.S. Senate (July 19, 2012), available at http://www.snowe.
senate.gov/public/index.cfm/files/serve/?File_id=ef26ca1c-5b19-4107-82a4-af404d1baf18.
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110
Letter from Olympia Snowe, Republican Deputy Whip, U.S. Senate, to Harry Reid,
Majority Leader, U.S. Senate & Mitch McConnell, Minority Leader, U.S. Senate (July 19,
2012), available at http://www.snowe.senate.gov/public/index.cfm/files/serve/?File_id=ef26c
a1c-5b19-4107-82a4-af404d1baf18.
111
See Open Executive Session to Consider The Family and Business Tax Cut Certainty
Act of 2012, U.S. SENATE COMM. ON FIN. (Aug. 2, 2012), http://www.finance.senate.gov/hear-
ings/hearing/?id=c36e29ca-5056-a032-5260-7997a539f948 (video of markup and link to sev-
eral related documents); see also Press Release, Olympia Snowe, U.S. Senator, Snowe
Statement on Senate Finance Committee Tax Extender Markup (Aug. 2, 2012), http://www.
snowe.senate.gov/public/index.cfm/pressreleases?ContentRecord_id=89c59f3b-efba-408b-8b
1a-897f5d8009fd&ContentType_id=ae7a6475-a01f-4da5-aa94-0a98973de620&Group_id=26
43ccf9-0d03-4d09-9082-3807031cb84a&MonthDisplay=8&YearDisplay=2012.
112
Labor Force Statistics from the Current Population Survey, supra note 20. R
113
Nelson D. Schwarz, Fearing an Impasse in Congress, Industry Cuts Spending, N.Y.
TIMES, Aug. 6, 2012, at A1.
114
Id.
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VIII. CONCLUSION
115
Charles Mahtesian & Jim VandeHei, Congress: It’s Going to Get Worse, POLITICO
(May, 2, 2012), http://www.politico.com/news/stories/0412/75771.html.
116
Id.
117
This figure includes Senators Joseph Lieberman (I-CT) and Bernie Sanders (I-VT) in
the majority, as they have chosen to caucus with the Democrats.
118
Gerald F. Seib, No Sign of Voter Polarization Waning, WALL ST. J., July 10, 2012, at
A4.
119
Id.
120
Id.
121
Id.
122
Id.
123
See, e.g., Partisan Polarization Surges in Bush, Obama Years, PEW RESEARCH CTR.
(June 4, 2012), http://pewresearch.org/pubs/2277/republicans-democrats-partisanship-partisan-
divide-polarization-social-safety-net-environmental-protection-government-regulation-
independents.
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ment with politics runs high; and issues and outcomes are “spun” by spin
doctors.
But the enduring fact is, we are a great nation with resilient citizens
who have overcome the most powerful trials of the 20th century. What our
success in the future will require from its political leaders is cooperation, not
confrontation; civility, not hostility; vision, not division. It will require a
thorough and adequate review of how we consider legislation, including ex-
ploring potential changes to the filibuster, use of cloture, and ways to more
consistently ensure the open amendment process that has been a hallmark
and strength of the United States Senate. It will require a change in behavior,
as members put partisanship aside for the good of the country—something
that I strongly believe must be rewarded at the ballot box if it is to occur.
And it will require the restoration of confidence in our nation’s leaders and
our institutions. That confidence, I believe, will only be secured by evidence
of a new and lasting bipartisanship among our leaders.